Western Management, Inc. - Page 10

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          Kovacevich was a statutory employee because at all relevant times           
          he served as petitioner’s president and secretary-treasurer,                
          worked in all significant aspects of petitioner’s business,                 
          performed substantial services for petitioner in his capacity as            
          an officer, and obtained remuneration for such services from                
          petitioner as his needs arose.2                                             
          III. Section 530 of the Revenue Act of 1978                                 
               Section 530 provides relief from employment tax liability,             
          notwithstanding the actual relationship between the taxpayer and            
          the individual performing services.  Sec. 530(a).  The taxpayer,            
          however, must establish:  It did not treat the worker as an                 
          employee, filed all returns for periods after December 31, 1978,            
          “on a basis consistent with the taxpayer’s treatment of such * *            
          * [worker] as not being an employee”, and had a reasonable basis            
          for not treating the worker as an employee.  Sec. 530(a)(1) and             
          (2); Joseph M. Grey Pub. Accountant, P.C. v. Commissioner, supra            
          at 123.                                                                     



               2  Petitioner contends that the Court’s determination of               
          whether Kovacevich is an employee or independent contractor is              
          controlled by Clackamas Gastroenterology Associates, P.C. v.                
          Wells, 536 U.S. __, 123 S. Ct. 1673 (Apr. 22, 2003).  We                    
          disagree.  In Clackamas, the Court simply held that in                      
          determining whether four director-shareholder physicians were               
          employees or employers for purposes of the Americans with                   
          Disabilities Act of 1990, “the common-law element of control is             
          the principal guidepost”.  The Court did not consider whether               
          these individuals were employees or independent contractors for             
          FICA and FUTA purposes.  For employment tax purposes, Kovacevich            
          is a statutory employee pursuant to sec. 3121(d)(1), and we need            
          not resort to the common-law principles considered in Clackamas.            



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